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instrument does not designate such payment as a payment that is
not includable in the payee's gross income under section 71 and
is not allowable as a deduction to the payor under section 215;
(3) if the individual and the spouse are legally separated, they
are not members of the same household; and (4) the payor has no
liability to make any such payment for any period after the death
of the payee. Secs. 71(b), 215(b).
Relying upon the above definition and the language of the
divorce decree, petitioners argue that the payments petitioner
made to Mary Kay Nelson during the years in issue constitute
alimony within the meaning of section 215 and are therefore
deductible as claimed on their Federal income tax returns.
Respondent agrees with petitioners that as far as the
literal language of the divorce decree provides, the payments
satisfy the definition of alimony for Federal income tax
purposes. However, according to respondent, the actions of the
divorce court and appellate court supersede the language of the
divorce decree. Therefore, according to respondent, and at least
with respect to the years in issue, if not before, payments made
pursuant to the relevant alimony portion of the divorce decree
are not deductible. Respondent's argument is grounded upon the
principle that the division of marital property does not give
rise to an alimony deduction on the part of the payor spouse, a
proposition of law not disputed by petitioners. See sec. 1041.
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Last modified: May 25, 2011